8TH CIRCUIT MODEL INSTRUCTIONS 2009
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11.    Verdict Forms

        11.00     Introductory Comment
        11.01     General Verdict
        11.02     General Verdict - With Lesser Included Offense
        11.03     Sample Special Verdict Form (Interrogatories to Follow Finding of Guilt)

8TH CIRCUIT MODEL INSTRUCTIONS 2009

11.00 VERDICT FORMS
Introductory Comment

This section includes sample verdict forms for a general verdict, a verdict on a lesser offense instruction, and a verdict followed by special findings. The verdict forms set forth in this section are not intended to be a comprehensive list of verdict forms.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

FORECITE National™ Materials Related To This Instruction:

Chapter 287: Verdict

We, the jury, find Defendant (name) _______________ [guilty/not guilty]of the crime of (insert brief description, e.g., "bank robbery") [as charged in Count _____ of the indictment] [under Instruction No. _____ ].¹

____________________________________
Foreperson

_______________
(Date)

1. See Instructions 3.09 and 3.12, supra. If the elements instruction does not refer to a count in the indictment, the verdict form should refer to the elements instruction.

General verdicts are preferred in criminal cases; verdicts based on special interrogatories and answers have been held to be inappropriate. Gray v. United States, 174 F.2d 919 (8th Cir. 1949). A "step-by-step" approach to reaching a verdict in a criminal case has been described as creating the unacceptable possibility of judicial control of a verdict by the manner in which questions to the jury are framed. United States v. Spock, 416 F.2d 165, 182 (1st Cir. 1969). Cf. United States v. Melvin, 27 F.3d 710, 716 (1st Cir. 1994) (discussing when exceptions to rule against special interrogatories are appropriate under Spock). As a corollary to the concern over judicial control, a court may not "bifurcate" the elements of an offense so that a jury is precluded from considering all elements of the charged offense, thus being deprived of information that would be likely to affect the jury's assessment of whether a crime had been committed and proved. United States v. Barker, 1 F.3d 957 (9th Cir. 1993), amended at 20 F.3d 365 (9th Cir. 1994).

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

VERDICT

We, the jury, find Defendant (name) _______________ [guilty/not guilty] of the crime of (insert brief description, e.g., "bank robbery") [as charged in Count _____ of the indictment] [under Instruction No. _____ ].¹

____________________________________
Foreperson

_______________
(Date)

1. See Instructions 3.09 and 3.12, supra. If the elements instruction does not refer to a count in the indictment, the verdict form should refer to the elements instruction.

General verdicts are preferred in criminal cases; verdicts based on special interrogatories and answers have been held to be inappropriate. Gray v. United States, 174 F.2d 919 (8th Cir. 1949). A "step-by-step" approach to reaching a verdict in a criminal case has been described as creating the unacceptable possibility of judicial control of a verdict by the manner in which questions to the jury are framed. United States v. Spock, 416 F.2d 165, 182 (1st Cir. 1969). Cf. United States v. Melvin, 27 F.3d 710, 716 (1st Cir. 1994) (discussing when exceptions to rule against special interrogatories are appropriate under Spock). As a corollary to the concern over judicial control, a court may not "bifurcate" the elements of an offense so that a jury is precluded from considering all elements of the charged offense, thus being deprived of information that would be likely to affect the jury's assessment of whether a crime had been committed and proved. United States v. Barker, 1 F.3d 957 (9th Cir. 1993), amended at 20 F.3d 365 (9th Cir. 1994).

(For 2006 version see below)

***************************************************************************************************************************

VERDICT

We, the jury, find Defendant (name) _______________[guilty/not guilty] of the crime of (insert brief description, e.g., "bank robbery") [as charged in Count _____ of the indictment] [under Instruction No. _____ ].1

____________________________________
Foreperson

_______________
(Date)

1. See Instructions 3.09 and 3.12, supra. If the elements instruction does not refer to a count in the indictment, the verdict form should refer to the elements instruction.

General verdicts are preferred in criminal cases; verdicts based on special interrogatories and answers have been held to be inappropriate. Gray v. United States, 174 F.2d 919 (8th Cir. 1949). A "step-by-step" approach to reaching a verdict in a criminal case has been described as creating the unacceptable possibility of judicial control of a verdict by the manner in which questions to the jury are framed. United States v. Spock, 416 F.2d 165, 182 (1st Cir. 1969). Cf. United States v. Melvin, 27 F.3d 710, 716 (1st Cir. 1994) (discussing when exceptions to rule against special interrogatories are appropriate under Spock). As a corollary to the concern over judicial control, a court may not "bifurcate" the elements of an offense so that a jury is precluded from considering all elements of the charged offense, thus being deprived of information that would be likely to affect the jury's assessment of whether a crime had been committed and proved. United States v. Barker, 1 F.3d 957 (9th Cir. 1993), amended at 20 F.3d 365 (9th Cir. 1994).

For 2000 version see below

******************************************************************************************************************

2000 Version

11.01 GENERAL VERDICT

VERDICT

We, the jury, find the defendant (name) _______________ [guilty/not guilty] of the crime of (insert brief description, e.g., "bank robbery") [as charged in Count _____ of the indictment] [under Instruction No. _____ ].1

____________________________________ Foreperson _______________ (Date)

General verdicts are preferred in criminal cases; verdicts based on special interrogatories and answers have been held to be inappropriate. Gray v. United States, 174 F.2d 919 (8th Cir.), cert. denied, 338 U.S. 848 (1949). A "step-by-step" approach to reaching a verdict in a criminal case has been described as creating the unacceptable possibility of judicial control of a verdict by the manner in which questions to the jury are framed. United States v. Spock, 416 F.2d 165, 182 (1st Cir. 1969). Cf. United States v. Melvin, 27 F.3d 710, 716 (1st Cir. 1994) (discussing when exceptions to rule against special interrogatories are appropriate under Spock). As a corollary to the concern over judicial control, a court may not "bifurcate" the elements of an offense so that a jury is precluded from considering all elements of the charged offense, thus being deprived of information that would be likely to affect the jury's assessment of whether a crime had been committed and proved. United States v. Barker, 1 F.3d 957 (9th Cir. 1993), amended at 20 F.3d 365 (9th Cir. 1994).

1. See Instructions 3.09 and 3.12, supra. If the elements instruction does not refer to a count in the indictment, the verdict form should refer to the elements instruction.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

FORECITE National™ Materials Related To This Instruction:

Chapter 287: Verdict

We, the jury, find Defendant (name) _______________guilty/not guiltyof the crime of (insert brief description, e.g., "possession with intent to distribute __________") [as charged in Count _____ of the indictment] [under Instruction No. _____ ].

____________________________________
Foreperson

_______________
(Date)

Note: If you unanimously find Defendant (name) guilty of the above crime, have your foreperson write "guilty" in the above blank space, sign and date this verdict form. Do not consider the following verdict form.

If you unanimously find Defendant (name) not guilty of the above charge, have your foreperson write "not guilty" in the above blank space. You then must consider whether the defendant is guilty of (specify lesser-included offense) on the following verdict form.

If you are unable to reach a unanimous decision on the above charge, leave the space blank and decide whether the defendant is guilty of (specify lesser-included offense) on the following verdict form.

[LESSER-INCLUDED OFFENSE]¹

We, the jury, find Defendant (name) _______________ [guilty/not guilty]of the crime of (insert brief description, e.g., "possession of __________") [as charged in Count _____ of the indictment] [under Instruction No. _____ ].

____________________________________
Foreperson

_______________
(Date)

1. See Instruction 3.10, supra. See also, e.g., United States v. Friend, 50 F.3d 548, 554 (8th Cir. 1995).

A defendant has a nonwaivable right to a unanimous jury verdict. United States v. Eagle Elk, 820 F.2d 959, 961 (8th Cir. 1987); FRCP 31(a). However, indictments frequently allege a violation of federal law by "one or more specified means" as permitted by FRCP 7(c)(1). See, e.g., United Sates v. Lueth, 807 F.2d 719, 733 (8th Cir. 1986). As a general rule, a general verdict of guilty is not subject to attack on the ground that one of the alternative means of committing the crime was not proved by sufficient evidence. The presumption is that the jury sorted out the evidence and that the verdict was based on the alternative supported by sufficient evidence. See Griffin v. United States, 502 U.S. 46 (1991). On the other hand, if one alternative basis for guilt is legally insufficient, and it cannot be determined whether the jury's verdict was based on a supportable ground or on an illegal or unconstitutional ground, the verdict must be set aside. United States v. Goodner Bros. Aircraft, Inc., 966 F.2d 380, 384 (8th Cir. 1992) (citing Griffin, supra). However, if a jury’s finding of guilt of a greater offense necessarily includes a finding of guilt of a lesser offense, the verdict can stand as to the lesser offense even if there was insufficient evidence to support the verdict on the greater offense. United States v. Friend, 50 F.3d 548, 554 (8th Cir. 1995).

Beyond the general principles outlined above, there are cases which discuss the need for more definition of "the level of factual specificity at which jurors must concur to convict a defendant." Scott W. Howe, Jury Fact-Finding in Criminal Cases: Constitutional Limits on Factual Disagreements Among Convicting Jurors, 58 Mo. L. Rev. 1 (1993). For a general discussion of the need for unanimity as to facts supporting a conviction, see United States v. Correa-Ventura, 6 F.3d 1070 (5th Cir. 1993).

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

VERDICT

We, the jury, find Defendant (name) _______________ guilty/not guilty of the crime of (insert brief description, e.g., "possession with intent to distribute __________") [as charged in Count _____ of the indictment] [under Instruction No. _____ ].

____________________________________
Foreperson

_______________
(Date)

Note: If you unanimously find Defendant (name) guilty of the above crime, have your foreperson write "guilty" in the above blank space, sign and date this verdict form. Do not consider the following verdict form.

If you unanimously find Defendant (name) not guilty of the above charge, have your foreperson write "not guilty" in the above blank space. You then must consider whether the defendant is guilty of (specify lesser included offense) on the following verdict form.

If you are unable to reach a unanimous decision on the above charge, leave the space blank and decide whether the defendant is guilty of (specify lesser included offense) on the following verdict form.

[LESSER INCLUDED OFFENSE]¹

1. See Instruction 3.10, supra. See also, e.g., United States v. Friend, 50 F.3d 548, 554 (8th Cir. 1995).

A defendant has a nonwaivable right to a unanimous jury verdict. United States v. Eagle Elk, 820 F.2d 959, 961 (8th Cir. 1987); FRCP 31(a). However, indictments frequently allege a violation of federal law by "one or more specified means" as permitted by FRCP 7(c)(1). See, e.g., United Sates v. Lueth, 807 F.2d 719, 733 (8th Cir. 1986). As a general rule, a general verdict of guilty is not subject to attack on the ground that one of the alternative means of committing the crime was not proved by sufficient evidence. The presumption is that the jury sorted out the evidence and that the verdict was based on the alternative supported by sufficient evidence. See Griffin v. United States, 502 U.S. 46 (1991). On the other hand, if one alternative basis for guilt is legally insufficient, and it cannot be determined whether the jury's verdict was based on a supportable ground or on an illegal or unconstitutional ground, the verdict must be set aside. United States v. Goodner Brothers Aircraft, Inc., 966 F.2d 380, 384 (8th Cir. 1992) (citing Griffin, supra). However, if a jury’s finding of guilt of a greater offense necessarily includes a finding of guilt of a lesser offense, the verdict can stand as to the lesser offense even if there was insufficient evidence to support the verdict on the greater offense. United States v. Friend, 50 F.3d 548, 554 (8th Cir. 1995).

Beyond the general principles outlined above, there are cases which discuss the need for more definition of "the level of factual specificity at which jurors must concur to convict a defendant." Scott W. Howe, Jury Fact-Finding in Criminal Cases: Constitutional Limits on Factual Disagreements Among Convicting Jurors, 58 Mo. L. Rev. 1 (1993). For a general discussion of the need for unanimity as to facts supporting a conviction, see United States v. Correa-Ventura, 6 F.3d 1070 (5th Cir. 1993).

(For 2006 version see below)

***************************************************************************************************************************

VERDICT

We, the jury, find Defendant (name) _______________guilty/not guilty of the crime of (insert brief description, e.g., "possession with intent to distribute __________") [as charged in Count _____ of the indictment] [under Instruction No. _____ ].

____________________________________
Foreperson

_______________
(Date)

Note: If you unanimously find Defendant (name) guilty of the above crime, have your foreperson write "guilty" in the above blank space, sign and date this verdict form. Do not consider the following verdict form.

If you unanimously find Defendant (name) not guilty of the above charge, have your foreperson write "not guilty" in the above blank space. You then must consider whether the defendant is guilty of (specify lesser included offense) on the following verdict form.

If you are unable to reach a unanimous decision on the above charge, leave the space blank and decide whether the defendant is guilty of (specify lesser included offense) on the following verdict form.

[LESSER INCLUDED OFFENSE]1

We, the jury, find Defendant (name) _______________ [guilty/not guilty] of the crime of (insert brief description, e.g., "possession of __________") [as charged in Count _____ of the indictment] [under Instruction No. _____ ].

____________________________________
Foreperson

_______________
(Date)

1. See Instruction 3.10, supra. See also, e.g., United States v. Friend, 50 F.3d 548, 554 (8th Cir. 1995).

A defendant has a nonwaivable right to a unanimous jury verdict. United States v. Eagle Elk, 820 F.2d 959, 961 (8th Cir. 1987); FRCP 31(a). However, indictments frequently allege a violation of federal law by "one or more specified means" as permitted by FRCP 7(c)(1). See, e.g., United Sates v. Lueth, 807 F.2d 719, 733 (8th Cir. 1986). As a general rule, a general verdict of guilty is not subject to attack on the ground that one of the alternative means of committing the crime was not proved by sufficient evidence. The presumption is that the jury sorted out the evidence and that the verdict was based on the alternative supported by sufficient evidence. See Griffin v. United States, 502 U.S. 46 (1991). On the other hand, if one alternative basis for guilt is legally insufficient, and it cannot be determined whether the jury's verdict was based on a supportable ground or on an illegal or unconstitutional ground, the verdict must be set aside. United States v. Goodner Brothers Aircraft, Inc., 966 F.2d 380, 384 (8th Cir. 1992) (citing Griffin, supra). However, if a jury’s finding of guilt of a greater offense necessarily includes a finding of guilt of a lesser offense, the verdict can stand as to the lesser offense even if there was insufficient evidence to support the verdict on the greater offense. United States v. Friend, 50 F.3d 548, 554 (8th Cir. 1995).

Beyond the general principles outlined above, there are cases which discuss the need for more definition of "the level of factual specificity at which jurors must concur to convict a defendant." Scott W. Howe, Jury Fact-Finding in Criminal Cases: Constitutional Limits on Factual Disagreements Among Convicting Jurors, 58 Mo. L. Rev. 1 (1993). For a general discussion of the need for unanimity as to facts supporting a conviction, see United States v. Correa-Ventura, 6 F.3d 1070 (5th Cir. 1993).

For 2000 version see below

******************************************************************************************************************

2000 Version

11.02 GENERAL VERDICT; WITH LESSER INCLUDED OFFENSE

VERDICT

We, the jury, find the defendant (name) _______________ [guilty/not guilty] of the crime of (insert brief description, e.g., "bank robbery") [as charged in Count _____ of the indictment] [under Instruction No. _____ ].

____________________________________ Foreperson _______________ (Date)

Note: If you unanimously find defendant (name) guilty of the above crime, have your foreperson write "guilty" in the above blank space, sign and date this verdict form. Do not consider the following verdict form.

If you unanimously find the defendant (name) not guilty of the above charge, have your foreperson write "not guilty" in the above blank space. You then must consider whether the defendant is guilty of (specify lesser included offense) on the following verdict form.

If you are unable to reach a decision on the above charge, leave the space blank and decide whether the defendant is guilty of (specify lesser included offense) on the following verdict form.

[LESSER INCLUDED OFFENSE]1

We, the jury, find the defendant (name) _______________ [guilty/not guilty] of the crime of (insert brief description, e.g., "bank larceny") [as charged in Count _____ of the indictment] [under Instruction No. _____ ].

____________________________________ Foreperson _______________ (Date)

A defendant has a nonwaivable right to a unanimous jury verdict. United States v. Eagle Elk, 820 F.2d 959, 961 (8th Cir.), cert. denied, 484 U.S. 867 (1987); FRCP 31(a). However, indictments frequently allege a violation of federal law by "one or more specified means" as permitted by FRCP 7(c)(1). See, e.g., United Sates v. Lueth, 807 F.2d 719, 733 (8th Cir. 1986). As a general rule, a general verdict of guilty is not subject to attack on the ground that one of the alternative means of committing the crime was not proved by sufficient evidence. The presumption is that the jury sorted out the evidence and that the verdict was based on the alternative supported by sufficient evidence. See Griffin v. United States, 502 U.S. 46 (1991). On the other hand, if one alternative basis for guilt is legally insufficient, and it cannot be determined whether the jury's verdict was based on a supportable ground or on an illegal or unconstitutional ground, the verdict must be set aside. United States v. Goodner Brothers Aircraft, Inc., 966 F.2d 380, 384 (8th Cir. 1992), cert. denied, 506 U.S. 1049 (1993) (citing Griffin, supra). However, if a jury’s finding of guilt of a greater offense necessarily includes a finding of guilt of a lesser offense, the verdict can stand as to the lesser offense even if there was insufficient evidence to support the verdict on the greater offense. United States v. Friend, 50 F.3d 548, 554 (8th Cir. 1995).

Beyond the general principles outlined above, there are cases which discuss the need for more definition of "the level of factual specificity at which jurors must concur to convict a defendant." Scott W. Howe, Jury Fact-Finding in Criminal Cases: Constitutional Limits on Factual Disagreements Among Convicting Jurors, 58 Mo. L. Rev. 1 (1993). For a general discussion of the need for unanimity as to facts supporting a conviction, see United States v. Correa-Ventura, 6 F.3d 1070 (5th Cir. 1993).

1. See Instruction 3.10, supra. See also, e.g., United States v. Friend, 50 F.3d 548, 554 (8th Cir. 1995).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

FORECITE National™ Materials Related To This Instruction:

287.1 Special Verdicts

We, the jury, find Defendant (name) __________________ guilty/not guilty of the use of a firearm during and in relation to a crime of violence [as charged in Count _____ of the indictment] [under Instruction No. _____ ].

If you find the defendant "guilty," you must answer the following: ¹

Which of the following firearms do you find were used by the defendant?

_____ A 9mm semi-automatic pistol.

_____ An M-16 fully automatic rifle.

_____ A short-barreled 12-gauge shotgun.

(Check each firearm which the jury unanimously agrees the defendant used.)

____________________________________
Foreperson

____________________
(Date)

1. See Instruction 6.18.924, supra. This instruction may be used in a case where several firearms are charged in a single count as having been used by the defendant in violation of 18 USC 924(c), and the minimum punishment will differ according to the type of firearm. See, e.g., United States v. Correa-Ventura, 6 F.3d 1070, 1087 n.35 (5th Cir. 1993). Cf. United States v. Melvin, 27 F.3d 710, 714 (1st Cir. 1994) (enhanced penalty available only if jury identifies an "enhancing" firearm as supporting the conviction).

Special interrogatories to the jury, to be answered after finding guilt, have been approved or recommended in various situations. Several courts have considered situations in which special findings by the jury would have avoided error. In United States v. Owens, 904 F.2d 411 (8th Cir. 1990), the Court of Appeals found unacceptable instructions which had allowed the jury to convict if it found that either amphetamine or methamphetamine was the object of the charged conspiracy. The Owens opinion states, at p. 415:

Because the establishment of Owens' base offense level required a determination of which drug the conspiracy involved, and because the Sentencing Guidelines provide disparate sentencing ranges for amphetamine and methamphetamine, the district court should have used a special verdict form to permit the jury to indicate which substance it found to be the object of the conspiracy.

See also United States v. Baker, 16 F.3d 854, 858 (8th Cir. 1994); cf. United States v. Watts, 950 F.2d 508, 514-15 (8th Cir. 1991) (distinguishing Owens in a case where evidence of the drug involved in the conspiracy was uncontradicted).

In Newman v. United States, 817 F.2d 635 (10th Cir. 1987), a general verdict on a charge of conspiracy to distribute both narcotic and non-narcotic drugs was held to be unacceptable because the sentencing court could not know which of two possible maximum sentences applied. The Newman opinion states, "The use of a special verdict identifying which underlying offenses were the objects of the conspiracy would have eliminated this ambiguity." 817 F.2d at 637. Cf. United States v. Stanberry, 963 F.2d 1323 (10th Cir. 1992) (the defendant not entitled to have special jury interrogatory on when conspiracy terminated since interrogatory was relevant only to sentencing factors). In United States v. Holley, 942 F.2d 916 (5th Cir. 1991), convictions on two counts of perjury were reversed for failure of the district court to give the defendant's requested "specific unanimity instruction." The counts of the indictment each alleged two or more false statements, any one of which would violate the statute. The court of appeals agreed with the defendant's argument that the jury should have been required to agree unanimously on at least one statement in each count. See United States v. Bellrichard, 62 F.3d 1046 (8th Cir. 1995) (majority opinion distinguishing Holley; dissent finding Holley on point). In United States v. Pungitore, 910 F.2d 1084, 1136 (3d Cir. 1990), the court noted that the jury's return of special interrogatories indicating the theory of murder on which it relied in finding RICO predicates eliminated concerns about unanimity of the verdict.

Special interrogatories to the jury may be helpful to the court in resolving sentencing issues, although a defendant is not entitled to jury determination of sentencing issues, and the court is not bound by the jury's findings on such issues. United States v. Page-Bey, 960 F.2d 724, 728 n.5 (8th Cir. 1992); United States v. Romo, 914 F.2d 889, 895 (7th Cir. 1990). Cf. United States v. Stanberry, 963 F.2d 1323, 1326 n.2 (10th Cir. 1992) (commenting that special verdicts "promise increased complexity and may debase the Sentencing Guidelines").

Special interrogatories to the jury should be submitted as questions to be answered only after finding guilt to avoid prejudice to the defendant in the form of leading the jury to a result. See, e.g., appendix to the opinion in United States v. Ryan, 9 F.3d 660, 676 (8th Cir. 1993), vacated on reh’g, 41 F.3d 361 (1994). In United States v. Console, 13 F.3d 641, 663 (3d Cir. 1993), the court stated:

The district court has discretion in determining whether to submit special interrogatories to the jury regarding the elements of an offense. [However, such interrogatories are not required.] . . . Moreover, even when special interrogatories regarding RICO are submitted to the jury, the court is permitted to give an instruction to the jury to answer the interrogatories only after it votes to convict, thereby alleviating the danger of prejudice to the defendant. [Footnote omitted.]

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

VERDICT

We, the jury, find Defendant (name) __________________ guilty/not guilty of the use of a firearm during and in relation to a crime of violence [as charged in Count _____ of the indictment] [under Instruction No. _____ ].

If you find the defendant "guilty," you must answer the following: ¹

Which of the following firearms do you find were used by the defendant?

_____ A 9mm semi-automatic pistol.

_____ An M-16 fully automatic rifle.

_____ A short-barreled 12-gauge shotgun.

(Check each firearm which the jury unanimously agrees the defendant used.)

____________________________________
Foreperson

____________________
(Date)

1. See Instruction 6.18.924, supra. This instruction may be used in a case where several firearms are charged in a single count as having been used by the defendant in violation of 18 USC 924(c), and the minimum punishment will differ according to the type of firearm. See, e.g., United States v. Correa-Ventura, 6 F.3d 1070, 1087 n.35 (5th Cir. 1993). Cf. United States v. Melvin, 27 F.3d 710, 714 (1st Cir. 1994) (enhanced penalty available only if jury identifies an "enhancing" firearm as supporting the conviction).

Special interrogatories to the jury, to be answered after finding guilt, have been approved or recommended in various situations. Several courts have considered situations in which special findings by the jury would have avoided error. In United States v. Owens, 904 F.2d 411 (8th Cir. 1990), the Court of Appeals found unacceptable instructions which had allowed the jury to convict if it found that either amphetamine or methamphetamine was the object of the charged conspiracy. The Owens opinion states, at p. 415:

Because the establishment of Owens' base offense level required a determination of which drug the conspiracy involved, and because the Sentencing Guidelines provide disparate sentencing ranges for amphetamine and methamphetamine, the district court should have used a special verdict form to permit the jury to indicate which substance it found to be the object of the conspiracy.

See also United States v. Baker, 16 F.3d 854, 858 (8th Cir. 1994); cf. United States v. Watts, 950 F.2d 508, 514-15 (8th Cir. 1991) (distinguishing Owens in a case where evidence of the drug involved in the conspiracy was uncontradicted).

In Newman v. United States, 817 F.2d 635 (10th Cir. 1987), a general verdict on a charge of conspiracy to distribute both narcotic and non-narcotic drugs was held to be unacceptable because the sentencing court could not know which of two possible maximum sentences applied. The Newman opinion states, "The use of a special verdict identifying which underlying offenses were the objects of the conspiracy would have eliminated this ambiguity." 817 F.2d at 637. Cf. United States v. Stanberry, 963 F.2d 1323 (10th Cir. 1992) (the defendant not entitled to have special jury interrogatory on when conspiracy terminated since interrogatory was relevant only to sentencing factors). In United States v. Holley, 942 F.2d 916 (5th Cir. 1991), convictions on two counts of perjury were reversed for failure of the district court to give the defendant's requested "specific unanimity instruction." The counts of the indictment each alleged two or more false statements, any one of which would violate the statute. The court of appeals agreed with the defendant's argument that the jury should have been required to agree unanimously on at least one statement in each count. See United States v. Bellrichard, 62 F.3d 1046 (8th Cir. 1995) (majority opinion distinguishing Holley; dissent finding Holley on point). In United States v. Pungitore, 910 F.2d 1084, 1136 (3d Cir. 1990), the court noted that the jury's return of special interrogatories indicating the theory of murder on which it relied in finding RICO predicates eliminated concerns about unanimity of the verdict.

Special interrogatories to the jury may be helpful to the court in resolving sentencing issues, although a defendant is not entitled to jury determination of sentencing issues, and the court is not bound by the jury's findings on such issues. United States v. Page-Bey, 960 F.2d 724, 728 n.5 (8th Cir. 1992); United States v. Romo, 914 F.2d 889, 895 (7th Cir. 1990). Cf. United States v. Stanberry, 963 F.2d 1323, 1326 n.2 (10th Cir. 1992) (commenting that special verdicts "promise increased complexity and may debase the Sentencing Guidelines").

Special interrogatories to the jury should be submitted as questions to be answered only after finding guilt to avoid prejudice to the defendant in the form of leading the jury to a result. See, e.g., appendix to the opinion in United States v. Ryan, 9 F.3d 660, 676 (8th Cir. 1993), vacated on reh’g, 41 F.3d 361 (1994). In United States v. Console, 13 F.3d 641, 663 (3d Cir. 1993), the court stated:

The district court has discretion in determining whether to submit special interrogatories to the jury regarding the elements of an offense. [However, such interrogatories are not required.] . . . Moreover, even when special interrogatories regarding RICO are submitted to the jury, the court is permitted to give an instruction to the jury to answer the interrogatories only after it votes to convict, thereby alleviating the danger of prejudice to the defendant. [Footnote omitted.]

(For 2006 version see below)

***************************************************************************************************************************

VERDICT

We, the jury, find Defendant (name) __________________ guilty/not guilty of the use of a firearm during and in relation to a crime of violence [as charged in Count _____ of the indictment] [under Instruction No. _____ ].

If you find the defendant "guilty," you must answer the following: 1

Which of the following firearms do you find were used by the defendant?

_____ A 9mm semi-automatic pistol.

_____ An M-16 fully automatic rifle.

_____ A short-barreled 12-gauge shotgun.

(Check each firearm which the jury unanimously agrees the defendant used.)

____________________________________
Foreperson

____________________
(Date)

1. See Instruction 6.18.924, supra. This instruction may be used in a case where several firearms are charged in a single count as having been used by the defendant in violation of 18 USC 924(c), and the minimum punishment will differ according to the type of firearm. See, e.g., United States v. Correa-Ventura, 6 F.3d 1070, 1087 n.35 (5th Cir. 1993). Cf. United States v. Melvin, 27 F.3d 710, 714 (1st Cir. 1994) (enhanced penalty available only if jury identifies an "enhancing" firearm as supporting the conviction).

Special interrogatories to the jury, to be answered after finding guilt, have been approved or recommended in various situations. Several courts have considered situations in which special findings by the jury would have avoided error. In United States v. Owens, 904 F.2d 411 (8th Cir. 1990), the Court of Appeals found unacceptable instructions which had allowed the jury to convict if it found that either amphetamine or methamphetamine was the object of the charged conspiracy. The Owens opinion states, at p. 415:

Because the establishment of Owens' base offense level required a determination of which drug the conspiracy involved, and because the Sentencing Guidelines provide disparate sentencing ranges for amphetamine and methamphetamine, the district court should have used a special verdict form to permit the jury to indicate which substance it found to be the object of the conspiracy.

See also United States v. Baker, 16 F.3d 854, 858 (8th Cir. 1994); cf. United States v. Watts, 950 F.2d 508, 514-15 (8th Cir. 1991) (distinguishing Owens in a case where evidence of the drug involved in the conspiracy was uncontradicted).

In Newman v. United States, 817 F.2d 635 (10th Cir. 1987), a general verdict on a charge of conspiracy to distribute both narcotic and non-narcotic drugs was held to be unacceptable because the sentencing court could not know which of two possible maximum sentences applied. The Newman opinion states, "The use of a special verdict identifying which underlying offenses were the objects of the conspiracy would have eliminated this ambiguity." 817 F.2d at 637. Cf. United States v. Stanberry, 963 F.2d 1323 (10th Cir. 1992) (the defendant not entitled to have special jury interrogatory on when conspiracy terminated since interrogatory was relevant only to sentencing factors). In United States v. Holley, 942 F.2d 916 (5th Cir. 1991), convictions on two counts of perjury were reversed for failure of the district court to give the defendant's requested "specific unanimity instruction." The counts of the indictment each alleged two or more false statements, any one of which would violate the statute. The court of appeals agreed with the defendant's argument that the jury should have been required to agree unanimously on at least one statement in each count. See United States v. Bellrichard, 62 F.3d 1046 (8th Cir. 1995) (majority opinion distinguishing Holley; dissent finding Holley on point). In United States v. Pungitore, 910 F.2d 1084, 1136 (3d Cir. 1990), the court noted that the jury's return of special interrogatories indicating the theory of murder on which it relied in finding RICO predicates eliminated concerns about unanimity of the verdict.

Special interrogatories to the jury may be helpful to the court in resolving sentencing issues, although a defendant is not entitled to jury determination of sentencing issues, and the court is not bound by the jury's findings on such issues. United States v. Page-Bey, 960 F.2d 724, 728 n.5 (8th Cir. 1992); United States v. Romo, 914 F.2d 889, 895 (7th Cir. 1990). Cf. United States v. Stanberry, 963 F.2d 1323, 1326 n.2 (10th Cir. 1992) (commenting that special verdicts "promise increased complexity and may debase the Sentencing Guidelines").

Special interrogatories to the jury should be submitted as questions to be answered only after finding guilt to avoid prejudice to the defendant in the form of leading the jury to a result. See, e.g., appendix to the opinion in United States v. Ryan, 9 F.3d 660, 676 (8th Cir. 1993), vacated on reh’g, 41 F.3d 361 (1994). In United States v. Console, 13 F.3d 641, 663 (3d Cir. 1993), the court stated:

The district court has discretion in determining whether to submit special interrogatories to the jury regarding the elements of an offense. [However, such interrogatories are not required.] . . . Moreover, even when special interrogatories regarding RICO are submitted to the jury, the court is permitted to give an instruction to the jury to answer the interrogatories only after it votes to convict, thereby alleviating the danger of prejudice to the defendant. [Footnote omitted.]

For 2000 version see below

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2000 Version

11.03 SAMPLE SPECIAL VERDICT FORM (INTERROGATORIES TO FOLLOW FINDING OF GUILT)

VERDICT

We, the jury, find defendant (name) __________________ guilty/not guilty of the use of a firearm during and in relation to a crime of violence [as charged in Count _____ of the indictment] [under Instruction No. _____ ].

If you find defendant "guilty," you must answer the following: 1

Which of the following firearms do you find were used by defendant?

_____ A 9mm semi-automatic pistol.

_____ An M-16 fully automatic rifle.

_____ A short-barreled 12-gauge shotgun.

(Check each firearm which the jury unanimously agrees defendant used.)

____________________________________ Foreperson ____________________ (Date)

Special interrogatories to the jury, to be answered after finding guilt, have been approved or recommended in various situations. Several courts have considered situations in which special findings by the jury would have avoided error. In United States v. Owens, 904 F.2d 411 (8th Cir. 1990), the Court of Appeals found unacceptable instructions which had allowed the jury to convict if it found that either amphetamine or methamphetamine was the object of the charged conspiracy. The Owens opinion states, at p. 415:

Because the establishment of Owens' base offense level required a determination of which drug the conspiracy involved, and because the Sentencing Guidelines provide disparate sentencing ranges for amphetamine and methamphetamine, the district court should have used a special verdict form to permit the jury to indicate which substance it found to be the object of the conspiracy.

See also United States v. Baker, 16 F.3d 854, 858 (8th Cir. 1994); cf. United States v. Watts, 950 F.2d 508, 514-15 (8th Cir. 1991) (distinguishing Owens in a case where evidence of the drug involved in the conspiracy was uncontradicted).

In United States v. Newman, 817 F.2d 635 (10th Cir. 1987), a general verdict on a charge of conspiracy to distribute both narcotic and non-narcotic drugs was held to be unacceptable because the sentencing court could not know which of two possible maximum sentences applied. The Newman opinion states, "The use of a special verdict identifying which underlying offenses were the objects of the conspiracy would have eliminated this ambiguity." 817 F.2d at 637. Cf. United States v. Stanberry, 963 F.2d 1323 (10th Cir. 1992) (defendant not entitled to have special jury interrogatory on when conspiracy terminated since interrogatory was relevant only to sentencing factors). In United States v. Holley, 942 F.2d 916 (5th Cir. 1991), convictions on two counts of perjury were reversed for failure of the district court to give defendant's requested "specific unanimity instruction." The counts of the indictment each alleged two or more false statements, any one of which would violate the statute. The court of appeals agreed with defendant's argument that the jury should have been required to agree unanimously on at least one statement in each count. See United States v. Bellrichard, 62 F.3d 1046 (8th Cir. 1995) (majority opinion distinguishing Holley; dissent finding Holley on point). In United States v. Pungitore, 910 F.2d 1084, 1136 (3d Cir. 1990), the court noted that the jury's return of special interrogatories indicating the theory of murder on which it relied in finding RICO predicates eliminated concerns about unanimity of the verdict.

Special interrogatories to the jury may be helpful to the court in resolving sentencing issues, although a defendant is not entitled to jury determination of sentencing issues, and the court is not bound by the jury's findings on such issues. United States v. Page-Bey, 960 F.2d 724, 728 n.5 (8th Cir. 1992); United States v. Romo, 914 F.2d 889, 895 (7th Cir. 1990). Cf. United States v. Stanberry, 963 F.2d 1323, 1326 n.2 (10th Cir. 1992) (commenting that special verdicts "promise increased complexity and may debase the Sentencing Guidelines").

Special interrogatories to the jury should be submitted as questions to be answered only after finding guilt to avoid prejudice to the defendant in the form of leading the jury to a result. See, e.g., appendix to the opinion in United States v. Ryan, 9 F.3d 660, 676 (8th Cir. 1993), vacated on rehearing, 41 F.3d 361 (1994). In United States v. Console, 13 F.3d 641, 663 (3d Cir. 1993), the court stated:

The district court has discretion in determining whether to submit special interrogatories to the jury regarding the elements of an offense. [However, such interrogatories are not required.] . . . Moreover, even when special interrogatories regarding RICO are submitted to the jury, the court is permitted to give an instruction to the jury to answer the interrogatories only after it votes to convict, thereby alleviating the danger of prejudice to the defendant. [Footnote omitted.]

1. See Instruction 6.18.924, supra. This instruction may be used in a case where several firearms are charged in a single count as having been used by defendant in violation of 18 USC 924(c), and the minimum punishment will differ according to the type of firearm. See, e.g., United States v. Correa- Ventura, 6 F.3d 1070, 1087 n.35 (5th Cir. 1993). Cf. United States v. Melvin, 27 F.3d 710, 714 (1st Cir. 1994) (enhanced penalty available only if jury identifies an "enhancing" firearm as supporting the conviction).